Wabanaki Legal News
| A publication of Pine Tree Legal Assistance |
Summer 2000
Native American Legal Briefs
--Indian Territory--
--Cross Border Rights--
--Water Quality--
--Discrimination--
Table of Contents
Maine Supreme Court Rules Land in Albany Township Not Indian Territory
Supreme Court of Canada to Hear Appeal of Case Involving Aboriginal and Treaty Cross-Border Rights
Dispute Over Regulation Of Water Quality in Tribal Territories Likely To End Up in Federal Court
Guidance Counselor at Indian Island School Alleges Discrimination
Maine Supreme Court Rules Land in Albany Township Not Indian Territory
In 1988, the Passamaquoddy Tribe bought land in Albany Township from a Tribal member. In 1992, state legislation was passed to amend the Maine Indian Land Claims Implementing Act. The amendment added to the list of parcels of land that could be designated Indian territory. One of the parcels listed was "any lands in Albany Township acquired by the Passamaquoddy Tribe before January 1, 1991." However, there was a pre-existing requirement in the Act that before any land could be added as Indian territory, it had to be transferred to the Secretary of the Interior in trust and certified as accepted by the Secretary on or before January 31,1991. That language was not changed when the Albany land was added to the list of parcels of land. The Albany land was transferred to the Secretary, but it was not approved until October 21, 1994.
In 1997, acting on the assumption that the land in question was Indian territory, the Passamaquoddy Tribe applied to the Land Use Regulatory Commission asking that the parcel be rezoned for "General Development" and that a development permit be issued to allow construction of a high stakes bingo facility. Some area residents opposed the Passamaquoddy’s request. After a hearing, LURC granted both the rezoning and permit requests. LURC’s decision was appealed to the Superior Court. The Superior Court decided that the parcel was not in fact Indian Territory. Therefore, since high stakes bingo is not permitted except in Indian Territory, the Court ruled that it was improper for LURC to have granted the Passamaquoddy’s request. The Superior Court’s decision was then appealed to the Maine Supreme Court. The Supreme Court upheld the Superior Court decision.
In reaching its decision, the Supreme Court looked at the language of the statute. The Court found that the Albany land did not meet the statutory requirements for being Indian Territory because the land had not been transferred to and accepted by the Secretary of the Interior before January 31, 1991.
The Court next looked at the question whether the statutory language was meaningless or absurd on its face. On the one hand, the Albany land was clearly described in the statute as land that could be designated as Indian Territory. On the other hand, the language requiring acceptance by the Secretary was not amended to allow the land to be added as Indian Territory. The Court found that this was not a meaningless or absurd result because the legislature could act at any time in the future to extend the time by which the Secretary could accept the land. The Court pointed out that the legislature theoretically knows how to amend the date and had, in fact, changed the date on a number of occasions in the past.
Finally, the Court noted that there was nothing that allowed the Court to read into the statute a different deadline for the Secretary’s acceptance of the land. The Court concluded that it was not free to substitute a different date for acceptance. It stated that "[s]uch speculation and legislative redrafting is wholly outside of our role as a court."
Supreme Court of Canada to Hear Appeal of Case Involving Aboriginal and Treaty Cross-Border Rights
On June 16 of this year, the Supreme Court of Canada heard an appeal from the Federal Court of Canada in a case involving the rights of Akwesasne Mohawks to bring goods for personal and community use from the United States into Canada without having to pay customs duties or sales taxes.
On March 22,1988, Michael Mitchell, also known as Kanantakeron, entered Canada from New York State at Cornwall Island. Mr. Mitchell is the Grand Chief of the Mohawks of Akwesasne. He entered Canada with a washing machine, 20 bibles, 10 blankets, used clothing, 10 loaves of bread, two pounds of butter, 4 gallons of milk, six bags of cookies, 12 cans of soup and a case of motor oil. The motor oil was brought into Mohawk territory for resale to Tribal members. All the other items were intended as presents for residents of the Tyendinaga Indian Reserve, traditional trading partners of the Mohawks. Mr. Mitchell declared the goods at Customs, but refused to pay duty or sales tax on them. He claimed an aboriginal and treaty right to be free of duty on the items. The goods were later presented to residents on the Tyendinaga Reserve as part of a ceremony to show a renewed commitment to trade.
In September of 1989, the Canadian Minister of National Revenue demanded that Mr. Mitchell pay $361.64 in duties, sales tax and penalties. Mr. Mitchell challenged the Minister’s action in Federal Trial Court. The Trial Judge decided that there was an aboriginal right to "pass and repass freely across what is now the Canada-United States boundary including the right to bring goods from the United States into Canada for personal and community use without having to pay customs duties on those goods." The trial judge also found that "goods for personal and community use" included goods used for sustenance, household goods and goods used for First Nations’ custom. The judge decided that these goods included goods for non-commercial trade with all First Nations. The trial judge’s decision was then appealed to the Federal Court of Canada, the Canadian federal appellate court.
On November 2, 1998, the Federal Court issued its decision in this case. It agreed that there was an aboriginal right, but it found that the trial judge had defined the right too broadly. The Federal Court decision stated that the aboriginal right in this case was limited to the Mohawks of Akwesasne when they crossed the international border at Cornwall Island. The right was limited to goods for personal use or consumption or goods for the collective use or consumption by the Akwesasne community and did not apply to non-commercial trading. Finally, the right was limited to goods bought in the State of New York. In other words, the aboriginal right was site specific. The Federal Court relied on the findings of the trial judge that the early practice of the Akwesasne Mohawks was not to pay duties on goods bought in the State of New York for use on the Awesasne Reserve. It is this decision which has been appealed to the Supreme Court of Canada.
Dispute Over Regulation Of Water Quality in Tribal Territories Likely To End Up in Federal Court
The Department of the Interior has issued an opinion saying that the State of Maine cannot regulate water quality within the territories of the Penobscot Nation and the Passamaquoddy Tribe. State officials and others disagree. They claim that under the 1980 Maine Indian Claims Settlement Act the Tribes and their lands are subject to the same laws as everyone else. According to a May 29, 2000 article in the Bangor Daily News, the outcome of the dispute could affect more than 50 towns and companies along several Maine rivers and their tributaries. The issue is likely to end up in federal court.
Guidance Counselor at Indian Island School Alleges Discrimination
Linda Venable, the Guidance Counselor at the Indian School has filed three complaints with the Maine Human Rights Commission. She is alleging that she was discriminated against because the school committee decided not to renew her contract for next year. Ms. Venable is a non-Indian.
This case may be controlled by the 1999 First Circuit Court of Appeals decision involving the firing of Cynthia Fellencer, a community health nurse. In that case, the Court ruled that Ms. Fellencer’s employment was an internal tribal matter. It was not an issue that could be ruled on by the Human Rights Commission. For a discussion of that case in full, see the Summer, 1999 edition of the Wabanaki Legal News, Volume 3, Issue 2,
